Whiting v First/Keolis Transpennine Ltd [2018] EWCA Civ 4 (17 January 2018)

Neutral Citation Number: [2018] EWCA Civ 4
Case No: B3/2016/1026

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN’S BENCH DIVISION (MANCHESTER DISTRICT REGISTRY)
HIS HONOUR JUDGE GORE QC
SITTING AS A DEPUTY JUDGE OF THE HIGH COURT
Claim No 3MA90050

Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 17/01/18

LADY JUSTICE GLOSTER
(Vice President of the Court of Appeal, Civil Division)
and
LORD JUSTICE HICKINBOTTOM
– – – – – – – – – – – – – – – – – – – – –
Between :

IAN WHITING Appellant
– and –
FIRST/KEOLIS TRANSPENNINE LIMITED Respondent

– – – – – – – – – – – – – – – – – – – – –
Susan Rodway QC (instructed by Glassbrooks Limited) for the Appellant
Michael Rawlinson QC (instructed by Transportation Claims Limited)
for the Respondent
Hearing date: 7 December 2017
– – – – – – – – – – – – – – – – – – – – –
Judgment Approved

Lord Justice Hickinbottom :

Introduction

1. On 21 February 2010, the Appellant arrived at Chorley Station on a northbound Transpennine Express train. He had been to a football match, and had had a considerable amount to drink. He got off the train, but, whilst the train was still stationary, unfortunately fell from the platform between two of the carriages onto the line. When the train pulled out of the station, it ran over his feet, severely damaging both, resulting in a below the knee amputation of his left leg and the amputation of the toes of his right foot. He also suffered a serious soft tissue injury to his right upper lateral thigh.

2. The Respondent has the operating franchise for the Transpennine Express; and is responsible for all aspects of the safe running of its trains (including, vicariously, for the acts and omissions of its staff during the course of their employment), and for the proper training, supervision and monitoring of its employees.

3. On 13 February 2013, in the Manchester District Registry of the High Court, the Appellant commenced proceedings against the Respondent for damages, on the basis that his accident resulted from the Respondent’s negligence, and in particular the negligent failure of the train guard to keep adequate observation of the Appellant’s movements before giving the signal to the train driver to move off.

4. On 4 December 2014, District Judge Moss ordered liability to be tried as a preliminary issue, and that issue was tried by His Honour Judge Gore QC sitting as a Deputy High Court Judge on 15-19 February 2016. On 19 February 2016, he gave an ex tempore judgment in favour of the Respondent, and he dismissed the claim. The Appellant now appeals against that order.

5. Before us, as before Judge Gore, Susan Rodway QC appeared for the Claimant/Appellant and Michael Rawlinson QC for the Defendant/Respondent.

The Factual Background

6. Chorley Station has two platforms, northbound and southbound, which are linked by a tunnel under the railway tracks. There is only one station entrance/exit, at the south end of the northbound platform.

7. At the time of the accident, the northbound platform was 140m long. It runs generally south-north but with a slight right-hand bend to the east. At the south end of the platform is the station building and ticket office, with a canopy on the platform side. Northwards beyond that building is a wall which runs to about the mid-point of the platform length, and then a chain-link fence to the end of the platform. There are three lamp standards along the wall, and a further three along the fence. Just to the north of the wall, between the third and fourth lamp standards and adjacent to the fence, is a billboard about 7-8m wide and higher than either the wall or fence.

8. The train upon which the Appellant arrived at Chorley was the 19.00 service from Manchester Airport to Barrow-in-Furness. It arrived at Chorley Station on the northbound platform at 19.44.

9. It comprised a Class 185 train of six carriages, in two identical sets of three coupled together. Each set is designed to operate in either direction as an independent train, and so the front of the first and end of the last carriage in each set has a space and set of controls that can be used as a driver’s cab or a guard’s cab. Furthermore, under the superstructure at the front of the first carriage and at the back of the last carriage of each set are identical metal fittings required for one end of a train or the other, comprising (in order from the end of the carriage, and all before the first wheel) a pair of bumpers, an obstacle deflector extending almost the full width of the carriage, a short two-step ladder on the nearside, and the leading edge of the bogie (to which the wheels are attached on each side) which extends 20 cm beyond the outer side of the wheel. None of that furniture exists at any other end of carriage.

10. Three other aspects of the train are worthy of note.

i) Each carriage has two sets of doors on each side, which are opened and closed by the guard using a key from one of the guard cabs.

ii) Internal access from one set of carriages to the other is not available.

iii) The length of the six carriage train was just over 143m, i.e. about 3m longer than the northbound platform at Chorley as it was in February 2010.

11. At trial, for convenience, the first carriage of the six carriage train was referred to as “carriage 1”, the second as “carriage 2”, and so on, so that the last carriage was “carriage 6”. I shall adopt the same terminology.

The Evidence

12. The Appellant could not remember anything about the relevant events. However, most of what happened on the day of his accident is uncontentious. The evidence in dispute at trial was largely that of Alan Stitt, who was the guard on the 19.00 Manchester Airport-Barrow train that day.

13. At the start of that train’s journey, only the front set of three carriages was open for use, and Mr Stitt conducted his guard duties from the cab at the back of carriage 3. However, the train filled up; and, at 19.19 at Manchester Oxford Road Station, he opened up the second set, and moved to the cab at the end of carriage 6, i.e. at the back of the train.

14. The train arrived at Chorley at 19.44, and left at 19.46. Mr Stitt was in his cab at the back of the train, to ensure that the train, being longer than the platform, had pulled up sufficiently to allow people at the back of the train (including Mr Stitt himself) to alight onto the platform.

15. Mr Stitt explained what he did as guard at that station stop. He was an experienced guard, and this was clearly an explanation of his usual routine. He first made sure the train was aligned so that his guard’s cab door in carriage 6 had access to the platform. He then opened the guard’s cab door onto the platform, took three steps away from the train (so that he could see the whole length of the train, despite the curvature of the platform) and checked to ensure it was safe to open the passenger doors, before opening those doors. He then again took three steps away from the train, and watched the passenger get on and off. Once the doors were clear, and exiting passengers were on the platform and away from the train, he again entered his cab and closed the passenger doors. He then once more took three steps away from the train, to check that all doors had closed correctly and the train was clear. He finally got back into his cab, closed the cab door and, by pressing a button in his cab, signalled to the driver to move away.

16. Mr Stitt gave evidence that, typically, the time that it took him to board the train for that final time, close his cab door and signal the driver would be about 4-5 seconds; and, although it was dependent upon the driver, a further two seconds before the train began to move. Ms Rodway criticises Mr Stitt’s memory of times and distances in other respects; but, on the basis of video recordings of a similar train stopping at Chorley on 3 and 16 July 2014, Mr Mottram (a consulting forensic engineer instructed on behalf of the Respondent) assessed the period between the driver re-entering his cab and the train moving off was approximately 9 seconds (see section 4 and paragraph 5.4.4 of his report dated 20 September 2015). Mr Rennie (the expert engineer instructed on behalf of the Applicant) did not seek to suggest that that was not a typical period for those actions to take place.

17. Mr Stitt said that, on arrival at Chorley on 21 February 2010, once he had opened the doors, about a dozen passengers, including the Appellant, got off onto the northbound platform. The Appellant was in carriage 2, which he left by the northernmost set of doors. Mr Stitt said that he saw the Appellant, who appeared to be drunk. He staggered towards the wall at the back of the platform, against which he lent, with his head against the wall. Mr Stitt said in his statement that that was only ten feet from where he left the train, but in his oral evidence he said that it was ten yards; and it took the Appellant 3-4 seconds to exit the train and get to the wall. (I pause there to note that the experts agreed that it was approximately 30m from the carriage door used by the Appellant to exit the train and the place by the wall where he was seen by Mr Stitt.) Following his usual procedure, Mr Stitt said he then checked that all passengers had moved away from the train, and he noticed the Appellant still leaning against the wall. He then closed the passenger doors, checked the train and platform again, got back into his cab, closed the cab door, looked through the closed cab window at the platform again, and then signalled the driver to move off. Mr Stitt did not suggest that anything delayed departure, or that the train did not depart with anything other than typical dispatch. Having signalled to the driver, Mr Stitt immediately started to move through the back half of the train to check tickets.

18. The remainder of the journey was uneventful, said Mr Stitt; and it was not until the train reached Barrow that he was told about the accident at Chorley, of which he had been unaware.

19. The only other lay witness of any evidential moment was a train customer, Michael Wilcock. He arrived at Chorley Station when the Appellant’s train was in the station, and he made his way onto the southbound platform. While there, and after the northbound train had pulled out of the station, Mr Wilcock noticed something on the line, and he realised that it was a man. He ran back to the ticket office to notify them, and then, bravely, got onto the tracks. There, he saw the Appellant by the side of the northbound tracks, nearest to the platform wall. His lower legs had obviously been injured. Mr Wilcock and another man lifted the Appellant onto the platform, before Mr Wilcock picked up the Appellant’s mobile phone and trainers from the tracks and put them too on the platform.

20. Attached to Mr Wilcock’s statement were two photographs (marked MW2), with yellow arrows pointing to where the statement said that Mr Wilcock had found the Appellant on the rail tracks and lifted him onto the platform. These placed the Appellant to the north of the billboard, between the billboard and the next lamp standard. However, Mr Wilcock said that the arrow was not put onto the photograph by him, nor could he remember being asked to confirm that that was where he had found the Appellant; and, in cross-examination, he accepted that he had not found the Appellant there, but rather some yards further south, by the billboard and only about one-third of the length of the billboard from its southern edge (15 February 2015 transcript, page 14F).

21. On a further photograph (exhibited to his statement as MW4), a yellow arrow is again shown north of the billboard as indicating where the Appellant was found, and two further yellow arrows – one perhaps by the southern edge of the billboard, and the other some yards further south still – purport to mark where Mr Wilcock found the trainers. Again, those arrows were not put onto the photograph by Mr Wilcock himself, nor could he remember being asked to confirm that that was where the trainers had been found and placed on the platform; but, in cross-examination, he would only say of those arrows and where he found the trainers: “Well they’re within maybe a few feet or something like that” (16 February 2015 transcript, page 22C).

22. The remaining evidence of any import was expert evidence, from consultants in emergency medicine (Dr William Hulse instructed on behalf of the Appellant, and Dr Stephen Metcalf on behalf of the Respondent) and engineers (James Stuart Rennie and Philip Mottram, to whom I have already referred). The experts gave evidence in respect of the following particularly relevant areas.

i) How long did it take from the time Mr Stitt entered his cab for the last time to the time the train started to move? As I have indicated, Mr Mottram assessed the typical period as approximately 9 seconds (see paragraph 16 above). Paragraph 2.8 of the joint expert engineers’ report stated that he had estimated the “period would probably have lasted a minimum of about 9 seconds”. Mr Rennie gave no contrary view.

ii) How long would it have taken the Appellant to have walked from his position on the wall as seen by Mr Stitt, to (a) the gap between carriages 3 and 4 and (b) the gap between carriages 4 and 5? Mr Mottram used a walking speed of 3mph (or 1.3m/s) for the Appellant’s walking speed, derived from a paper entitled “Pedestrian Speeds” by Gerry Eubank published in the Journal of the Institute of Traffic Accident Investigators (Autumn 1998) modified to take into account the Appellant’s inebriation. It was not suggested that that rate was inappropriate. At that rate, it would have taken the Appellant 7.5 seconds to walk from the wall where he had been positioned to the gap between carriages 3 and 4 (a distance of just over 10m), and about 23 seconds to walk from the wall to the gap between carriages 4 and 5 (about three times as far). The experts estimated the distance between the carriage door used by the Appellant to exit the train and where he was seen by Mr Stitt at the wall also to be about 30m which, at the same speed, would also have taken him about 23 secs to walk.

iii) By which part of the train was the Appellant struck? The Appellant’s case as originally pleaded was that he was struck by the front of the train (i.e. the front of carriage 1); but, following exchange of expert evidence, that was abandoned, principally because it would have required the Appellant to climb off the northern end of the platform and round in front of train, before lying or sitting on the rails. The claim was amended to plead that he had fallen off the platform between carriages – the expert engineers considered that there was insufficient room between the carriages and the platform – but without reference as to which carriages. In his report, Mr Rennie (the Appellant’s expert engineer) initially appeared to favour the gap between carriages 3 and 4, because that was relatively close to where the Appellant had been seen leaning and to where the Appellant’s trainers were found; but he said that medical evidence may assist in identifying the place he fell (paragraph 5.11.3 of his report dated 30 September 2015). The joint engineers’ statement did not comment on which gap the Appellant might have fallen into.

Dr Metcalf (the Respondent’s medical expert) also initially considered it more likely that the Appellant had fallen between carriages 3 and 4; but Dr Hulse favoured the gap between carriages 4 and 5. The medical experts agreed that it was likely that the traumatic amputation of the Appellant’s toes on his right foot and injury to his left foot occurred when a wheel of the train ran over his feet whilst he was sitting with his back to the platform wall with his feet on the nearside rail. Dr Hulse considered that, if he had fallen between carriages 3 and 4, before a wheel could engage with either of his feet, the undercarriage furniture would have struck his torso or leg(s) and knocked him out of that position; and his injuries would have been different from those he in fact suffered.

Although in their joint statement they agreed to differ as to where the Appellant fell, in the course of his oral evidence Dr Metcalf agreed with Dr Hulse’s view that, although it was possible for the injuries to have been suffered as a result of the Appellant falling between carriages 3 and 4 (because there were so many variables, particularly the angle at which the Appellant’s body was set when against the platform wall), it was more likely than not that he had fallen between carriages 4 and 5, and his feet had been struck by the front nearside wheel of carriage 5.

iv) Could the position of the trainers assist with regard to where the Appellant fell? The expert engineers agreed that it was unlikely that the wheel of a train moving north would have projected a trainer backwards, i.e. southwards; and, if it had, it would not have been far (paragraph 2.5 of their joint statement dated 16 December 2015). In oral evidence, Mr Rennie said it would not have been more than “perhaps a metre or so”. They agreed that, because of the uncertainty about where the Appellant’s trainers were found, they could not identify into which gap between carriages he had fallen (again, paragraph 2.5 of their joint statement).

v) When did the injury to the Appellant’s thigh occur? Dr Hulse considered that the injury to the Appellant’s thigh probably occurred at the same time as the injuries to his feet. Dr Metcalf did not suggest otherwise.

vi) How far was the Appellant dragged or thrown, having been struck by the train? Dr Hulse accepted that, from a medical point of view, he could not say whether the Appellant’s injuries were more likely the result of being dragged to where Mr Wilcock said he had found him (i.e. one third of the way north from the southern edge of the billboard) from the gap between carriages 3 and 4 (i.e. just over 10m, or about half a carriage length) or from the gap between carriages 4 and 5 (i.e. just over 30m, or about one and a half carriage lengths). Dr Metcalf expressed no view on this point.

vii) What procedure should Mr Stitt have followed when dispatching the train from Chorley station? The expert engineers were agreed that Mr Stitt was obliged to follow the directions in Section 8 of Module SS1 the Rule Book (Issue 2: October 2007), “Station duties and train dispatch”, published by the Rail Safety and Standards Board (“Section 8 of the Rule Book”).

The Judge’s Findings

23. The Particulars of Claim made numerous, wide allegations of breach of duty against the Respondent; but, by the time of the trial, the claim had become much more focused on the allegation that Mr Stitt had negligently failed to keep adequate observation of the Appellant’s movements before giving the signal to the train driver to move off. The claim was based upon the factual proposition that the Appellant had fallen between carriages 4 and 5, and it would have taken him at least 23 seconds to walk from the wall to the place where he fell. He must therefore have left the wall, and Mr Stitt ought to have seen him approaching the train (or at least that the Appellant had left the wall) before Mr Stitt had re-entered his cab for the last time to give the signal to the driver to move off. Mr Stitt accepted that, if he had seen that, he would not have signalled the driver to move off. Alternatively, if the court accepted that Mr Stitt had seen the Appellant by the wall before he re-entered his cab for the last time, then the period between Mr Stitt re-entering his cab for the last time and the train moving off was more than 23 seconds, and Mr Stitt was required to continue to observe the whole platform during that time. Whatever the length of that period, it was submitted that Mr Stitt had an obligation to look out of his open cab window and/or move to the cab in carriage 3 in the middle of the train, and observe the Appellant’s movements as the train was waiting to move off and as it in fact did so. Had he complied with that duty, he would have seen the Appellant moving towards the train prior to it moving away (or at least that the Appellant had left the wall), and he could and should have taken action to prevent the train moving before the Appellant fell onto the rails and the train hit him whilst he was there.

24. The whole focus of the claim was therefore on Mr Stitt’s alleged actions and failures to act. There was no allegation of systemic failure by the Respondent, except that it had failed to have in place a system of training and monitoring of staff to ensure that they (and, notably, Mr Stitt) did what the system otherwise required them to do (16 February 2016 transcript, page 5B).

25. In his judgment, having set out the nature and scope of breach of duty alleged, the geography of the station and the undercarriage furniture in a wholly unexceptional and uncontroversial way, Judge Gore found Mr Stitt to be an essentially honest witness (paragraph 33). As I have indicated, Mr Stitt had accepted that, if he had seen that the Appellant, in his drunken state, had moved away from the wall, he would not have given the signal to the driver to move away (paragraph 30); but the judge accepted Mr Stitt’s evidence that, when he boarded the train for the last time in order to close his cab door and press the button to direct the driver to move away, the Appellant was still leaning against the wall (paragraphs 31-32). There was nothing in the Appellant’s behaviour that should reasonably have alerted Mr Stitt to a risk of the Appellant moving from the wall and putting himself in a position of danger, such that he ought to have refrained from dispatching the train.

26. The judge also accepted the evidence that the train was not delayed and was dispatched promptly, and certainly dispatched in many fewer than 23 seconds from Mr Stitt’s last sighting of the Appellant at the wall (paragraph 27). The Appellant could not have made it to the gap between carriages 4 and 5 in time. He must therefore have fallen between carriages 3 and 4.

27. The judge found that Mr Stitt could not have seen out of his closed cab window beyond the front doors of carriage 5. He concluded that, contrary to Mr Stitt’s own opinion that if he had put his head he could not have seen further than the billboard, had Mr Stitt either put his head out of the window or taken up a position in carriage 3, he would in fact have been able to see that the Appellant had moved from the wall. Nevertheless, the judge found that Mr Stitt did exactly what Section 8 of the Rule Book required him to do. It did not require him either to put his head out of the window to observe the platform or undertake his guard’s duties from the rear of carriage 3; and the judge found that Mr Stitt was not negligent in failing to do either.

28. Judge Gore therefore concluded that the Appellant had failed to show that there was any relevant breach of duty. He found for the Respondent on the preliminary issue, and dismissed the claim. Those are the findings now appealed. The judge also found that if, contrary to his conclusion, the Respondent did breach its duty of care, the Appellant was partly to blame for his own injuries, and he assessed his contributory negligence at 33%. There is no appeal against that alternative finding.

The Grounds of Appeal

29. There are, unhelpfully, 27 grounds of appeal; but, in her submissions to this court, Ms Rodway was more focused. She submitted that Judge Gore’s finding of fact that the Appellant fell in the gap between carriages 3 and 4 was legally perverse, because, in making it, the judge improperly rejected the agreed expert evidence as to the probable mechanism and venue of the accident between carriages 4 and 5, and substituted his own personal opinion in relation to those expert matters, without providing any good reason for doing so. This is described as “the central or overriding ground” (ground 1, which is elaborated in grounds 3-10). Furthermore, his error was compounded because the agreed expert evidence that he rejected was overwhelmingly corroborated by the lay evidence (grounds 11-22, and 26). Grounds 23-25 deal with the remaining allegation of a systemic breach of duty. Grounds 2 and 27 are purely general in character, and do not add to the other grounds.

30. Ms Rodway suggested that the judge erred in law, by rejecting the agreed expert evidence, and doing so without giving any reason for doing so. However, in substance (and for reasons to which I shall shortly come), this is an appeal on questions of fact.

31. The proper approach to such appeals was recently considered by Henderson LJ in Cooperative Insurance Society General Insurance Limited v Hamid and Khalid [2017] EWCA Civ 201, in which he reviewed previous authorities including Fage UK Limited v Chobani UK Limited [2014] EWCA Civ 5 at [114]-[115], and confirmed at [28] that appellate courts will not interfere with findings of fact by trial judges “unless compelled to do so”. The approach was perhaps most elegantly described by Laws LJ in Subesh v Secretary of State for the Home Department [2004] EWCA Civ 56 at [44]:

“The burden so assumed [by the appellant] is not the burden of proof normally carried by a claimant in first instance proceedings where there are factual disputes. As appellant, if he is to succeed, he must persuade the appeal court or tribunal not merely that a different view of the facts from that taken below is reasonable and possible, but that there are objective grounds upon which the court ought to conclude that a different view is the right one. The divide between these positions is not caught by the difference between a perceived error and a disagreement. In either case the appeal court disagrees with the court below, and, indeed, may express itself in such terms. The true distinction is between the case where an appeal court might prefer a different view (perhaps on marginal grounds) and one where it concludes that the process of reasoning, and the application of the relevant law, require it to adopt a different view. The burden which an appellant assumes is to show that the case falls within this latter category.” (emphasis in the original).

32. In Fage UK at [115], Lewison LJ also very properly identified the task of a trial judge, which is limited:

“… to find facts and identify the crucial legal points and to advance reasons for deciding them in a particular way. He should give his reasons in sufficient detail to show the parties and, if need be, the Court of Appeal the principles on which he has acted and the reasons that have led him to his decision. They need not be elaborate. There is no duty on a judge, in giving reasons, to deal with every argument presented by counsel in support of his case. His function is to reach conclusions and give reasons to support his view, not to spell out every matter as if summing up to a jury.”

Of course, a judge is not required to deal with arguments counsel has not presented.

33. Applying these principles, I find the grounds of appeal unpersuasive. In particular, I consider the main plank of the submission – that the judge’s conclusion was perverse because it was contrary to the agreed expert evidence – to be misconceived.

34. Whilst, as Stuart-Smith LJ said in Liddell v Middleton [1996] PIQR P36 at page P43, “We do not have trial by expert in this country; we have trial by judge”, where experts are agreed on a matter within their technical expertise, a judge will only rarely reject that evidence; and should not do so without applying considerable caution and giving adequate reasons. Therefore, in Re N-BCM (Children) [2002] EWCA Civ 1052, upon which Ms Rodway relied, the Court of Appeal found that the first instance judge had erred in rejecting agreed expert evidence as to that father’s damaged personality and continuing emotional and psychological instability, on the basis of his own impression of the father’s personality and stability gained from his performance in the witness box.

35. However, often, the issues that the court has to consider are broader than, or otherwise different from, those upon which the experts have opined. In particular, experts may proceed on assumptions as to facts which the court is required to determine. As Clarke LJ put it in Cooper Payen Limited v Southampton Container Terminal Limited [2003] EWCA Civ 1223; [2004] 1 Lloyd’s Rep 331 at [42], in relation to the circumstances in which the court may reject the evidence of a single joint expert (but applicable to a situation in which more than one expert instructed by the parties are agreed):

“All depends upon the circumstances of the particular case. For example, the joint expert may be the only witness on a particular topic, as for instance where the facts on which he expresses an opinion are agreed. In such circumstances it is difficult to envisage a case in which it would be appropriate to decide this case on the basis that the expert’s opinion was wrong. More often, however, the expert’s opinion will be only part of the evidence in the case. For example, the assumptions upon which the expert gave his opinion may prove to be incorrect by the time the judge has heard all the evidence of fact. In that event the opinion of the expert may no longer be relevant, although it is to be hoped that all relevant assumptions of fact will be put to the expert because the court will or may otherwise be left without expert evidence on what may be a significant question in the case. However, at the end of the trial the duty of the court is to apply the burden of proof and to find the facts having regard to all the evidence in the case, which will or may include both evidence of fact and evidence of opinion which may interrelate.”

In that case, the Court of Appeal overruled the trial judge because there was no rational explanation for the way the accident upon which the claim was founded could have happened on the trial judge’s findings of fact.

36. However, here, Judge Gore had direct evidence from Mr Stitt as to where and how the Appellant was standing when he looked down the platform for the last time before retiring to his guard’s cab and signalling to the driver to move the train away, i.e. by the wall without evincing any intention to move away from the wall prior to the train’s departure. The judge was, undoubtedly, entitled to accept that evidence. He was also entitled to accept the evidence that, normally, the time taken between final re-entry into his cab from the platform and the train moving away was under 10 seconds, and there was nothing unusual about the train’s dispatch that day. He was certainly entitled to conclude that that period was considerably less than the 23 seconds it would have taken the Appellant to walk from his position at the wall to the gap between carriages 4 and 5. These were the crucial findings which led the judge to conclude on all the evidence before him that, on the balance of probabilities, the Appellant did indeed fall between carriages 3 and 4.

37. Neither those intermediary findings of fact nor the final conclusion were perverse, as being contrary to agreed expert evidence. None of the experts said that, in terms of their own discipline of medicine or engineering, it was impossible for the Appellant to have fallen between carriage 3 and 4. They simply said that, on the basis of the information with which they had been provided (notably the injuries the Appellant suffered and the train’s undercarriage furniture) it was more likely than not that he fell between carriages 4 and 5. That opinion was a matter which the judge was required to take into account in determining, on the basis of all the evidence before him, whether the Appellant had shown on the balance of probabilities that he had fallen there; but it did not, in itself, determine that issue. Their opinion may – and almost certainly would – have been different had they been asked to proceed on the assumption that the Appellant was at the wall when Mr Stitt looked down the platform, about 10 seconds prior to the train moving away.

38. In determining the issue of where the Appellant fell, the judge did not ignore the expert evidence. Rather, he clearly took it into account.

39. In paragraphs 20-23 of his judgment, he considered the engineering evidence. In respect of Mr Rennie, the judge noted that he had not indicated that he considered it more likely that the Appellant had fallen between carriages 4 and 5 until his oral evidence (save, apparently, for an unrecorded indication at the joint experts’ meeting). He also noted Mr Rennie’s concession that, even with his feet on the line, the Appellant could have been leaning over to his left to such an extent that the undercarriage furniture would have passed over his body. The judge recorded Mr Mottram as being unconvinced that the Appellant had fallen between carriages 4 and 5, but he would defer to the medical experts insofar as conclusions could be drawn from the evidence of injuries.

40. The judge dealt with the medical evidence in paragraphs 24-26. He noted that Dr Hulse was firm and consistent in his view that the Appellant had probably fallen between carriages 4 and 5, because of the likelihood that, if he had fallen between carriages 3 and 4 the undercarriage furniture (notably the obstacle deflector and ladder) would have hit his body such that his feet would not have been in the position on the line that led to the amputation injuries he suffered to his feet. However, in paragraph 24 of his judgment, the judge referred to a number of variables that might have affected the likelihood of the fall being between carriages 4 and 5 – notably the Appellant’s physiology – and the possibility, accepted by Dr Hulse, of the Appellant having been leaned over to the left, which would have reduced the risk of him being hit by the furniture under the front of carriage 4. The accident which occurred was the result of dynamics, the precise circumstances of which are unknown. In any event, Dr Hulse did not rule out the possibility of the fall being between carriages 3 and 4.

41. The expert evidence also went to some other issues – to which I shall shortly come – but the judge clearly had very well in mind the evidence of the experts that, on the basis of the injuries received by the Appellant to his feet and the undercarriage furniture, it was more likely that he had fallen between carriages 4 and 5; and took that into account in concluding on the basis of all the evidence, but particularly that of Mr Stitt, that it was between carriage 3 and 4.

42. The other evidence upon which Ms Rodway relies in support of her submission that the judge’s finding that the Appellant fell between carriages 3 and 4 was one that he could not properly make, was as follows.

Trainers

43. Ms Rodway submitted to Judge Gore that inferences could be drawn as to where the Appellant fell from where his trainers were found. The best evidence as to the location of the trainers as found on the tracks was, she submitted, from Mr Wilcock. He said that he had appreciated the potential importance of the position of the shoes, and had placed them on the platform adjacent to where he had found them on the tracks. No one had plotted where he put them; but someone had, after the event, placed the yellow arrows on the exhibits to his statements, where I have described (see paragraph 20 above). In his oral evidence, Mr Wilcock confirmed those positions, to within a few feet (see paragraph 21 above); and the judge said that he accepted Mr Wilcock’s evidence “in its entirety” (paragraph 14 of his judgment). The agreed expert evidence was that the forward-moving train would not have kicked back the trainers, southwards, by more than a metre. The position of the trainers on the track were therefore inconsistent with the Appellant having fallen between carriages 3 and 4: the trainers were found too far south for that. The judge’s finding as to the place of the fall was incompatible with this evidence.

44. The judge dealt with the issue in paragraphs 15-16 of his judgment. He was not persuaded that the evidence as to where the Appellant’s trainers were found provided a basis upon which any inference could be drawn as to where he had fallen, for four reasons, namely, in the judge’s own words:

“(1) No steps were taken by anyone to plot or mark or measure the locations of the trainers…; Mr Wilcock only confirms the positions in his oral testimony… as ‘an approximation’.

(2) Although he says he was careful because he thought the police might regard positions as relevant, it was a dark, dank night and, even though no one challenged that all the lights were working, I am far from satisfied that retrieval was as precise as has been suggested.

(3) There is no evidence to confirm that these were the [Appellant’s] trainers or even that they were a pair, although Mr Wilcock asserted them to have been a pair in his statement to the [police].

(4) There is no evidence as to which trainer lay where. By that I mean which one was the right trainer and which one was the left.”

45. I accept that there is force in Ms Rodway’s argument that the judge was incorrect to suggest that the trainers may not have been the Appellants (because his wife, who saw them, referred to them as being “his”); and also that there may have been some relevance as to which trainer (right or left) lay furthest south and/or, in paragraph 16, as to possible throw back.

46. However, the judge’s first and main reason for not attaching any significant evidential weight to the trainers was that he was unpersuaded that the evidence as to where they were found was reliable. As he said, at the time, no steps were taken to plot where they were found; and Mr Wilcock could only confirm that the yellow arrow markings on the photograph were “an approximation”. In his oral evidence, he said that the markings were accurate to within “a few feet”; but that has to be treated with some considerable caution, because he accepted that the place marked on the same photograph as where he found the Appellant on the tracks – on any view, a more important locus – was wrong by some yards. Ms Rodway emphasised the judge’s statement that he accepted Mr Wilcock’s evidence “in its entirety”; but it is clear from considering his judgment as a whole that he did not consider reliable Mr Wilcock’s evidence that the yellow arrows purporting to show where the Appellant’s trainers were found were no more than a “few feet” out from where the shoes were in fact found. I do not consider that literal internal inconsistency in the judgment to be of any moment.

47. Both Counsel cross-examined the expert engineers on the basis that the trainers did not assist in identifying where the Appellant had fallen, because of the unreliability of the evidence as to where they were found (see 16 February 2016 transcript, page 24B and 42B). Indeed, Ms Rodway confirmed that, in her view, the judge could derive no assistance from the position of the trainers (ibid, page 42F). In any event, the judge was clearly entitled to consider the evidence as to the locations where the trainers were found was unreliable; and thus to discount the value of the trainers as he did.

The Distance the Appellant was Dragged or Thrown

48. In his oral evidence, as I have described, Mr Wilcock denied that he had found the Appellant where the exhibit to his statement showed: he said he had found him on the tracks adjacent to the billboard. Ms Rodway submitted that the judge erred in finding that the Appellant had been dragged or thrown 30 feet (from the gap between carriages 3 and 4) as a result of the impact of the train, but could not have been dragged or thrown 100 feet (from the gap between carriages 4 and 5), was not a finding open to him, because Dr Hulse had said that it was not possible to draw any conclusion either way as to the distance he had been dragged or thrown. Dr Hulse indicated that the thick winter jacket being worn by the Appellant would have protected him to an extent. That evidence was not challenged, and Dr Metcalf was not questioned on that issue.

49. At paragraph 26 of his judgment, the judge referred to that evidence of Dr Hulse, but continued:

“However, in my judgment, unaided by any evidence from the doctors who do not address the point any more than I have recorded, the other injuries do not seem to be consistent with being dragged or thrown 100 feet by a moving train but are more consistent with being dragged or thrown the more modest distance of 30-odd feet from the starting point of the gap between the carriages 3 and 4 and the final resting place of the [Appellant’s body] as described by Mr Wilcock. I also rely for that conclusion on the fact that, if, as is agreed, the [Appellant] fell when the train was stationary or just starting to move, its speed would not have yet been particularly great even though its injurious momentum, which would have been derived from the combination of its speed and its massive weight, would, in my judgment, have been sufficient to cause the traumatic injuries described…”.

50. I accept that this is not as finely worded as it might have been. However, in context, it seems to me that the judge was certainly not excluding the possibility of a fall between carriages 3 and 4 on this basis alone; but merely saying that, on all the evidence, the Appellant might have been expected to have suffered more widespread injuries if he had been dragged or thrown 100 feet, rather than 30 feet, by a train. It seems to me that the judge was simply making a common sense comment, rather than drawing a technical medical conclusion. But, in any event, this was not within the core reasoning of the judge. Insofar as he exceeded his role by making such a conclusion without appropriate supporting medical evidence, I do not consider that it was material to his ultimate finding in relation to where the Appellant fell, which was primarily based upon the evidence of Mr Stitt which he accepted.

The Appellant’s Thigh Injury

51. Ms Rodway submitted that Judge Gore erred in concluding that it was “highly improbable” that the injury to the Appellant’s right thigh was caused by a fall between carriages 4 and 5, when this formed no part of the evidence, yet alone conclusions, of the medical experts.

52. However, I consider this criticism of the judge unfair. I appreciate that neither medical expert said in terms that the thigh injury was inconsistent with the Appellant falling and incurring injuries in the gap between carriages 4 and 5; and also that the medical experts considered that, if the undercarriage furniture had struck the Appellant’s leg before the wheel struck him, then he would have been moved from the position that led to the particular injuries that he suffered to his feet. However, in paragraph 25 of his judgment, the judge carefully went through the evidence concerning the injury to the Appellant’s thigh. He accepted, as he was entitled to do, Dr Hulse’s evidence that this must have occurred at the same time as the injuries to his feet: Dr Metcalf expressed no view on that issue. The judge concluded that, although the precise dynamics might not be clear, the injury to the thigh was more likely to have been caused by the metal furniture under the front of carriage 4, rather than all of the injuries being caused by the furniture under the rear of carriage 6, which was the next batch of such furniture to pass over the Appellant. All the injuries being caused by carriage 6 postulated that he had placed his feet on the line only immediately prior to the rear wheels of carriage 6 passing him. That was a fully reasoned conclusion which the judge was entitled to reach.

Blood on the tracks

53. Ms Rodway submitted that the judge gave disproportionate weight to the evidence of the Appellant’s wife, which was read out at trial as agreed, with regard to where she saw blood on the rail tracks. She visited the scene whilst the Appellant was still there waiting for an ambulance. Her statement said that, when the paramedics were treating her husband on the platform north of the billboard, she looked down and saw blood on the nearside track; and she was “pretty sure this was just before the billboard”. Ms Rodway submits that there was no evidence as to whether that blood related to the place of the original injury, or (e.g.) the place to where he may have been dragged.

54. There is nothing of force in this submission. In paragraph 14 of his judgment, the judge relies upon Mrs Whiting’s evidence merely by way of confirmation of Mr Wilcock’s evidence that the Appellant had been found adjacent to the billboard, about one-third northwards of its southernmost edge. It is simply not arguable that the judge erred in the way in which he treated the evidence of the Appellant’s wife.

Timings

55. Ms Rodway submitted that, as Mr Stitt was unreliable as to the time it took for the Appellant to walk from the train to the wall – he said it took 3-4 seconds, although it was 30m and would have taken at least about 23 seconds – the judge was wrong to rely on his evidence that the time between him re-entering his car for the last time and the train moving away was only 6-7 seconds. There could easily have been a period of 23 seconds or more, she submitted, i.e. time enough for the Appellant to walk from the wall and fall between carriages 4 and 5.

56. However, in this regard, although the judge did accept Mr Stitt’s evidence that it took only about 6-7 secs (paragraph 31 of his judgment), he did not rely only on that evidence. He had evidence from Mr Mottram that this period was typically about 9 secs. The judge was right to say (as he did in paragraphs 13 and 27 of his judgment) that there was no evidence of any delay, or that the train lingered in the platform any longer than usual; and he was entitled to find that the train was dispatched promptly. His essential finding in paragraph 27 of his judgment was that the period between Mr Stitt’s final re-entry into his cab and the train moving off was much less than the 23 seconds it would have taken for the Appellant to have walked from the wall to the gap between carriages 4 and 5. On all the evidence, he was entitled to make that finding.

Ground 26

57. Ms Rodway criticises the judge for failing to deal with what she refers to as “the obvious conflict in Mr Stitt’s evidence” between him saying that he looked out of the closed window to see the platform was clear when he himself accepted that he could see very little of the platform through the closed window. The experts were agreed that he could have seen none of the platform beyond carriage 5. However, there was no inherent inconsistency in Mr Stitt’s evidence in this regard: and the judge did deal with this issue in paragraph 32 of his judgment. He said that Mr Stitt’s evidence was that he did look out of the closed window, but accepted that he could not see the whole of the platform. I consider below whether Mr Stitt was under any duty to open the window and look out of it (see paragraphs 58 and following); but, if he was not, then I do not consider there is any force in this minor point arising out of Mr Stitt’s evidence. Certainly, I do not consider that the judge can properly be criticised for the way in which he dealt with it.

58. For those reasons, in my judgment, on all of the evidence taken as a whole, Judge Gore was entitled to accept the evidence of Mr Stitt and to find that (i) when Mr Stitt looked down the platform immediately prior to closing his own guard’s cab door and signalling to the driver to move away, he saw the Appellant at the wall, giving no indication that he would move away from the wall towards the train; and (ii) between Mr Stitt closing the door and the train moving away, the Appellant walked to, and fell in, the gap between carriages 3 and 4. Those findings were not perverse – as findings no judge could properly make on the evidence – either because they controverted the agreed expert evidence, or because the evidence taken as a whole did not permit such findings. Indeed, in my view, Ms Rodway has fallen some way short of putting a persuasive case that this court is compelled to interfere with the factual findings made by the judge, upon which his conclusion to dismiss the claim was based

59. That leaves the remnants of the systemic challenge. Ms Rodway submitted that, having checked the platform before re-entering his guard’s cab from the platform for the last time, Mr Stitt should have wound down his window and put his head out of it, so that he could see the whole of the platform. Had he done so, he would have seen the Appellant move away from the wall towards the train. Mr Stitt accepted that, had he seen the Appellant move thus, he would have not have dispatched the train. Alternatively, Ms Rodway submitted, Mr Stitt ought to have performed his duties, not from the guard’s cab in carriage 6, but from that in carriage 3 in the middle of the train; from the closed window of which he could and would have seen the Appellant move.

60. Judge Gore was not persuaded by either of these submissions; neither am I.

61. As I have indicated, the expert engineers agreed that Mr Stitt was bound to comply with the directions in Section 8 of the Rule Book. Section 8 concerns “Starting a train from an unstaffed platform”, as Chorley Station was; and paragraph 8.3 concerns “Starting a train with power-operated doors that are operated by a guard”, as the relevant train was. The paragraph reads (all emphases in the original):

“You [i.e. the guard] must close the doors, except the local door from where the train is being worked.

After the train doors are closed

When you have closed the doors, you must:

where appropriate, check the door interlock light lit

position yourself on the platform so that you can see the whole length of the train.

From this position, you must carry out the train safety check. If it is safe for the train to start, you must:

close the local door

where appropriate, check the door interlock is lit

give the READY-TO-START signal to the driver

make sure the door controls are secured.”

62. Judge Gore found that “that is exactly what Mr Stitt did”. On the evidence, he was clearly entitled to make that finding.

63. Given the restricted scope of the systemic challenge, in my view that is sufficient to dispose of the final ground of appeal. However, it is noteworthy that the judge went on to find that:

i) Mr Stitt gave a plausible and reasonable explanation as to why he did not put the window down and look out of it, namely that it was dangerous; and, subsequently, there has been a direction prohibiting a guard from putting his or her head out of a cab window.

ii) Mr Stitt gave unchallenged evidence as to why he was at the rear of the train, namely to ensure the train was properly aligned to enable passengers at the back of the train to alight. That too was a reasonable explanation.

64. The judge also found that Mr Stitt complied with paragraph 6.1 of the Rule Book, which requires staff to be “vigilant during train dispatch to make sure that… it is safe to dispatch the train”. When he looked down the platform immediately prior to returning to his cab and signalling to the driver to move the train away, he saw the Appellant by the wall, drunk, but making no apparent movement towards the train or away from the wall. I accept – as did Mr Rawlinson – that train staff owe a duty of care to customers and others who may be on a station platform in close proximity to a train. A moving train is an inevitable hazard, particularly when in a station where there may be people on the platform without any barrier between them and the train as it moves away. There is an inherent risk involved, a risk which is increased when those on the platform include children, people who are or may be drunk, and/or others who are more likely to put themselves in danger. The guard (or any other person who is responsible for the train moving away safely) is not required to guarantee the safety of those who are on the platform: he must take a reasonable view of the risk posed to those to whom he owes a duty of care, in all the circumstances. It is important that the courts do not impose too high a duty of care upon those involved in services, such that their jobs become unreasonably difficult and it becomes unreasonably difficult for the provider to maintain an efficient service.

65. In this case, on the findings of the judge, having seen the Appellant at the wall when all the doors of the train are safely closed and the train is ready to be dispatched, apparently drunk, but displaying no signs of moving towards the train, in my view, Mr Stitt exercised his judgment with patent good care, thereby discharging his duty of care to the Appellant.

Conclusion

66. One can but have sympathy for the Appellant, who has, as a result of his terrible accident, suffered substantial injury and disability. However, the Respondent service provider is only liable for those injuries if they resulted from negligence for which it was responsible. For the reasons I have given, I agree with Judge Gore – the Respondent was not negligent, and in particular Mr Stitt (for whom the Respondent was responsible) was not negligent.

67. I would dismiss this appeal.

The Vice President (Lady Justice Gloster):

68. I agree. There is no justification for interfering with the trial judge’s findings of fact. Accordingly, the appeal must be dismissed.

SHEIN Many GEO's

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